Appeal Rejected: SST Denies Claimant’s Challenge to EI Earnings Allocation

OUTCOME: Refused

Citation: SP  v  Canada Employment Insurance Commission , 2026  SST  271 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Applicant: [redacted] Respondent: [redacted] Decision under appeal: [NAME] decision dated February 17, 2026 (GE-25-3178) Tribunal member: [NAME] date: March 31, 2026 File number: AD-26-152 On this page Decision Overview Issue Analysis Conclusion Decision [ 1 ] Leave (permission) to appeal is refused. The appeal will not proceed. Overview [ 2 ] The Applicant ([APPELLANT]) got $3,741.75 in vacation pay and $5,250.00 in severance pay from his former employer when he was dismissed. The Respondent (Commission) decided that the money is “earnings” under the law because it is severance pay and vacation pay. [ 3 ] The [APPELLANT] filed a lawsuit for wrongful and constructive dismissal. His employer paid him a total of $26,750.00, including his previous severance money, to settle the lawsuit. [ 4 ] The Commission allocated the earnings starting February 23, 2025, at an amount of $2,799.00 per week. This is the week that the Commission said that the Claimant was separated from his employment and this was why the Claimant received the earnings. After an unsuccessful reconsideration, the Claimant appealed to the [NAME] of the Tribunal. [ 5 ] The [NAME] determined that the Claimant had received $26,476.25 in earnings. These earnings were to be allocated starting the week of February 23, 2025, at $2,799.00 per week. Any remaining amount was to be allocated to the last week. [ 6 ] The Claimant now seeks leave to appeal of the [NAME]’s decision to the Appeal Division. The [APPELLANT] did not initially submit grounds of appeal. [ 7 ] I sent a letter to the [APPELLANT] requesting that he explain in detail why he was appealing the [NAME] decision. The [APPELLANT] submits that the Commission incorrectly calculated his total severance pay and applied $5,250.00 too much to his claim. Based on this finding, there should be a further examination of his case since there was an incorrect analysis of calculations. [ 8 ] The Claimant submits that the [NAME] member asked him at the first meeting if there was any mention in the statement of claim regarding waiving the requirement for employment reinstatement. He had checked the document and settlement and confirmed to her there was no mention of this waiver. This provision was ignored and not reflected in her final decision. [ 9 ] I must decide whether the Claimant raised some reviewable error of the [NAME] upon which the appeal might succeed. [ 10 ] I refuse leave to appeal because the Claimant’s appeal has no reasonable chance of success. Issue [ 11 ] Does the Claimant raise some reviewable error of the [NAME] upon which the appeal might succeed? Analysis [ 12 ] The law specifies the only grounds of appeal of a [NAME] decision. Footnote 1 These reviewable errors are that: The [NAME] hearing process was not fair in some way. The [NAME] did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide. The [NAME] based its decision on an important error of fact. The [NAME] made an error of law when making its decision. [ 13 ] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove his case but must establish that the appeal has a reasonable chance of success based on a reviewable error. In other words, that there is arguably some reviewable error upon which the appeal might succeed. [ 14 ] Therefore, before I can grant leave, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success. Does the [APPELLANT] raise some reviewable error of the [NAME] upon which the appeal might succeed? [ 15 ] The [NAME] determined that the total amount of vacation pay and severance pay the Claimant received $26,476.25 ($3,741.75 vacation pay plus $22,734.50 in total severance pay). It determined the amount was earnings under the law. The [NAME] determined that the earnings had to be allocated starting the week the [APPELLANT] was separated from his job, February 23, 2025, at $2,799.00 per week. Any amount remaining was to be allocated the last week. [ 16 ] The [APPELLANT] submits that the Commission incorrectly calculated his total severance pay and applied $5,250.00 too much to his claim. Based on this finding, there should be a further examination of his case since there was an incorrect analysis of calculations. [ 17 ] The [NAME] corrected the Commission’s error in its decision. The fact that the Commission made an error that was corrected by the [NAME] in favor of the Claimant does not constitute a valid ground of appeal. [ 18 ] The Claimant further submits that the [NAME] member mentioned in the first meeting if there was any mention in the statement of claim regarding waiving the requirement for employment reinstatement. He had checked the document and settlement and confirmed to her there was no mention of this waiver. This provision was ignored and not reflected in her final decision. [ 19 ] It is well established that money that is paid for the relinquishment of reinstatement rights is not considered earnings for EI purposes and is not allocated. Footnote 2 [ 20 ] The Claimant informed the [NAME] that there was no mention of a waiver in the statement of claim and settlement. Therefore, the amount the Claimant received are earnings that must be allocated. Even if the Appeal Division was to conclude that this was not mentioned in the decision, it would have no impact on the [NAME] decision. [ 21 ] After reviewing the appeal file and the [NAME]’s decision, I have no choice but to find that the appeal has no reasonable chance of success. The Claimant has not set out a reason, which falls into the above-enumerated grounds of appeal that could possibly lead to the reversal of the disputed decision. [ 22 ] If the [APPELLANT] wishes to request a write-off of his debt, he must submit a formal request directly to the Commission so that a decision can be made on this matter. Footnote 3 Conclusion [ 23 ] Leave to appeal is refused. This means the appeal will not proceed. Footnotes Footnote 1 Section 58(1) of the Department of Employment and Social Development Act . Return to footnote 1 referrer Footnote 2 Canada ([NAME] [NAME])  v  [NAME] , 2012  FCA  74. Return to footnote 2 referrer Footnote 3 Section 56 of the Employment Insurance Regulations . If the write-off is denied, the Claimant can appeal to the Federal Court. Return to footnote 3 referrer